Law Times

LAW TIMES / JULY 28/AUGUST 4, 2008 after purported voluntary enfran- chisement. Many years later, ap- pellant mother was permitted to register pursuant to s. 6(1)(d) of Act. This registration was limited since only appellant child was entitled to be registered while ap- pellant grandchild was not. Ap- pellant mother, child, and grand- child applied for full registration pursuant to s. 6(1)(a) of Act on basis that mother's enfranchise- ment was not valid. Appellant mother alleged unknown per- son had completed application without her knowledge and that she had signed it at chief's re- quest without knowing what it was. Registrar denied application on basis that appellant mother's evidence was not sufficient. Ap- peal allowed. Registrar had ju- risdiction to determine validity of enfranchisement even though enfranchisement had been effect- ed by way of Order-in-Council. Order-in-Council did not have to be found void before appel- lants could be registered with full status. Registrar erred in law by imposing burden of proof greater than balance of probabilities and by imposing requirement for cor- roboration where none existed at law. Registrar also erred by making findings of fact that were speculative and unsupported by evidence. Etches v. Canada (Department of Indian Affairs and Northern Development, Registrar) (Mar. 5, 2008, Ont.S.C.J., Forestell J., File No. 01-CV-204158) Order No. 008/071/033 (17 pp.). Courts ABUSE OF PROCESS Motion judge erred in dismissing sexual assault action as abuse of process based on defendant's acquittal Plaintiff sought to relitigate facts underlying sexual assault acquit- tal. Two employees of defendant hospital believed they witnessed defendant nurse sexually assault- ing severely disabled patient in intensive care unit. Criminal trial judge acquitted defendant, hold- ing that evidence failed com- pletely to prove defendant's guilt and in fact proved his innocence. Judge also telling victim's family that defendant did not sexually assault patient. Executor of pa- tient's estate commenced action against defendant for sexual as- sault, battery and breach of fidu- ciary duty and against hospital. Motion judge granted hospital's motion dismissing action as abuse of process. He relied principally upon decision in Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385 (S.C.C.) ("C.U.P.E."), finding it required protection of integrity of adjudi- cative process which may in turn require examination of reasons behind disposition by criminal court. He concluded it would be abuse of process to allow re- litigation of determination that assaults did not occur. Plaintiff 's appeal allowed. Abuse of process doctrine discussed in C.U.P.E. applicable. Reasons of trial judge reasonably open to interpretation that he did not simply have rea- sonable doubt but rather was sat- isfied there was no sexual assault. There were, however, other poli- cy interests that were important. One consideration was unfair- ness. No other way for plaintiff to review judicial findings upon which hospital relied since appeal would be against verdict and not reasons. In addition, dismissing action as abuse of process would attribute to reasons a declaration of innocence, a verdict not legally open in criminal proceedings. Polgrain Estate v. Toronto East General Hospital (May 29, 2008, Ont. C.A., Rosenberg, Feld- man and Simmons JJ.A., File No. C47904) Appeal from 161 A.C.W.S. (3d) 426; 286 D.L.R. (4th) 265; 47 C.P.C. (6th) 186; 87 O.R. (3d) 55 allowed. Order No. 008/154/129 (10 pp.). Bankruptcy And Insolvency CREDITORS Creditor's claim was to be given priority over unsecured trade creditors' claims Motion by trustee in bankruptcy for directions as to whether claim of judgment creditor should be allowed. Creditor and his brother had each owned one-half interest in bankrupt. Creditor transferred his interest to brother while in ill health but remained as president of bankrupt. Creditor was sub- sequently terminated. Creditor brought action against brother and bankrupt and was awarded his half interest, loss of profits, and punitive damages. Creditor sub- mitted claim of $46,627,215.21 to trustee in bankruptcy. Unse- cured trade creditors contended their claims should be given prior- ity even though their claims arose after creditor obtained judgment. Creditor's claim was to be given priority over unsecured trade cred- itors' claims. Creditor's judgment was not based on current equity in bankrupt but rather on previously declared dividends and bonuses. Judgment was debt claim properly provable in bankruptcy. There was no legitimate basis to subordinate creditor's claim on grounds of in- equitable conduct. I. Waxman & Sons Ltd. (Re) (Mar. 6, 2008, Ont.S.C.J. Com- mercial List, Pepall J., File No. 31-OR-207468-T) Order No. 008/071/075 (13 pp.). Evidence OPINION EVIDENCE Adoption worker not qualified as expert witness Status review hearing was con- ducted with respect to four chil- dren found to be in need of pro- tection. Adoption worker with Children's Aid Society was not qualified as expert witness in field of adoption and was not allowed to give opinion on adoptability of two youngest children. Adoption worker did not have sufficient skills, training, or experience to provide opinion evidence. Adop- tion worker had experience with finding suitable homes for chil- dren but not long-term success of adoptions. In addition, caution had to be exercised before ac- cepting staff employee of party as expert witness on issue central to outcome of case. Children's Aid Society of Ot- tawa v. W. (C.) (Mar. 25, 2008, Ont.S.C.J., Mackinnon J., File No. 04-FL-279) Order No. 008/092/029 (37 pp.). PRIVILEGE Letter from defendant to plaintiff not subject to normal settlement privilege Motion by defendant for order striking out alleged privileged communications from plaintiff 's affidavit in support of motion for summary judgment. Plaintiff brought lien action against de- fendant. Defendant was directed at pretrial hearing to communi- cate which invoices were in dis- pute. Defendant provided letter to plaintiff indicating particular amount. Plaintiff included letter in affidavit in support of motion for summary judgment. Motion dismissed. Letter was not subject of normal privilege that attached to settlement communications. Letter was specifically written in response to consent order. Let- ter would have to be interpreted contextually but that was mat- ter for judge hearing motion for summary judgment. Salter Farrow Pilon Architects Inc. v. Thunder Bay Regional Hospi- tal (Feb. 13, 2008, Ont.S.C.J., Smith J., File No. CV-04- 0230; CV-03-0716) Order No. 008/084/097 (6 pp.). Family Law CUSTODY Father's past abusive conduct was relevant to his ability to parent Parties were married 16 years and had one child. Court-or- dered supervised access was un- successful. Child refused to see father after one visit. Child was nine years old. Child expressed desire to live with mother. Fa- ther claimed mother alien- ated child from father. Mother claimed father physically and verbally abused mother and child witnessed behaviour. Fa- ther sought joint custody. Moth- er sought sole custody. Mother was awarded sole custody. Par- ties could not co-operate and communicate effectively. Father controlled relationship in nega- tive way. Father was physically and emotionally abusive to mother. Father's past conduct was directly relevant to father's ability to act as parent. Father showed lack of concern for child's best interests including destruction of R.E.S.P. fund. It was not in child's best interests to grant father access to child. Access was best determined af- ter child received counselling. Azimi v. Mirzaei (Apr. 2, 2008, Ont.S.C.J., Horkins J., File No. 06-FD-317032 FIS) Order No. 008/094/132 (37 pp.). DOMESTIC CONTRACTS Informal verbal agreement insufficient to displace presumption of mutual support Husband and wife informally agreed to share all expenses dur- ing marriage. Wife became dis- abled to point that she could only work part-time hours. Hus- band considered his payment of wife's expenses to be debt ow- ing to him. Husband and wife separated after ten years. Wife brought application for equal- ization of net family property and for spousal support. Appli- cation granted. Wife was found not to be indebted to husband. Informal verbal agreement was not sufficient to displace pre- sumption of mutual support. Nothing indicated parties had legal advice and wife had not ap- preciated consequences. Enforc- ing agreement in face of wife's health problems would have been unconscionable. Smith v. Smith (Apr. 9, 2008, www.lawtimesnews.com Attention: Photocopy Service: CaseLaw, 240 Edward St., Aurora, ON L4G 3S9 Please send the full text of the following judgments. Orders must provide the case name, case order number (9 digits) and number of pages. Please enclose payment unless you have a VISA, MasterCard, AMEX or Canada Law Book account number. Cheques are to be made payable to Canada Law Book Case Name Please send via: [ ] E-mail [ ] Mail [ ] Fax [ ] Courier Case Order Number (9 digits) No. of pages Ont. S.C.J. (Fam. Ct.), Con- way J., File No. 06-FA-14245 FIS) Order No. 008/105/043 (15 pp.). SUPPORT Increased support not "double dipping" Wife applied for increase in sup- port of $1,200. Wife earning WSIB of $64.91 per month. Husband objected because he now received a pension of $42,180. Husband's income was $72,800 when support order determined. Application dis- missed. Increased support not "double dipping" with respect to division of husband's pension because wife was in need and at poverty level. Wife had lim- ited ability to earn income due to disability. Wife economically disadvantaged from marriage breakdown. Husband able to contribute. However, wife able to contribute to her own sup- port. Income attributed to wife. Husband to maintain wife on his health benefits. Perry v. Perry (Mar. 26, 2008, Ont.S.C.J., Rogin J., File No. 97-GD-40831) Order No. 008/091/024 (7 pp.). Landlord And Tenant CONSTRUCTION OF LEASE Claim arising from water leakage was barred by lease Plaintiff was tenant. Defendant was contractor retained by land- lord to repair lease. Plaintiff claimed inventory was damaged by leak in roof. Plaintiff brought claim for insured loss arising from water leakage. Defendants argued claim was barred by pro- visions of lease. Plaintiff argued PAGE 15 lease protected landlord but not negligent outside contractor. Defendants' summary judg- ment motion was allowed. Ac- tion was dismissed against con- tractor and landlord. Claim was barred by lease. There was no evidence to indicate intention of parties concerning alloca- tion of risk, responsibility and insurance was other than clearly stated in lease. Harlon Canada Inc. v. Lang In- vestments Corp. (Mar. 31, 2008, Ont.S.C.J., Master MacLeod, File No. CV-05-CV03861- 000) Order No. 008/099/036 (6 pp.). Mental Health INCOMPETENT PERSONS Power of attorney affirmed on interim basis Applicants were appointed at- torney of father's personal care. Prior attorney argued father did not have requisite capacity. Ap- plicants questioned prior attor- ney's capacity. Applicants sought order that power of attorney be presumed valid on interim basis. Father had medical crisis. Prior attorney said not to take father to hospital. Father said father could not breathe and wanted to be taken to hospital. There was conflicting evidence as to fa- ther's capacity to appoint appli- cants. Further assessment was to be done. No finding was made with respect to prior attorney's capacity. It was in father's best interests for power of attorney to be affirmed on interim basis. Bennett v. Gotlibowicz (Mar. 19, 2008, Ont.S.C.J., Herman J.) Partial handwritten endorse- ment. Order No. 008/098/031 (5 pp.). LT Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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